Citation Nr: 9829418
Decision Date: 09/30/98 Archive Date: 10/06/98
DOCKET NO. 95-03 184 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Whether the veteran's improved disability pension was
properly terminated, effective February 1, 1989, due to
excess family income.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran had active service from March 1946 to January
1948. An appeal has been taken from a July 1993 action by
the Department of Veterans Affairs (VA) Regional Office,
Muskogee, Oklahoma, which terminated the veteran's award of
improved disability pension effective in February 1989, due
to excess family income. The case was initially before the
Board of Veterans' Appeals (Board) in July 1996 when it was
remanded for further action. The case is again before the
Board for further appellate consideration.
As noted in the July 1996 remand, the retroactive termination
of the veteran's award of improved disability pension
resulted in an overpayment of $7,901 in his account. In
October 1993 the regional office denied his request for
waiver of recovery of the overpayment. In a statement dated
in December 1993 it appeared that the veteran wished to
appeal that decision. This matter is again referred to the
regional office for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended, in substance, that the veteran's award of
improved disability pension should not have been terminated
effective in February 1989 since the veteran did not receive
some of the income attributed to him and he and his wife had
been separated from 1988 to 1992. The veteran maintains he
was unaware that his wife's earnings had any bearing on his
VA disability pension check.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran's improved
disability pension was properly terminated effective February
1989 due to excess family income.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
regional office.
2. The veteran had been in receipt of improved disability
pension benefits for several years. His wife had been
included as a dependent on his award.. As of 1989 his award
was based on his report that the only family income consisted
of his Social Security benefits.
3. In December 1991 the regional office received information
that the veteran had received additional income in 1989 and
his spouse had received income of $5,047 during that year.
4. In March 1992 the regional office received information
that the veteran had received $324 from racetrack winnings
and $186 from a bank in 1989.
5. In November 1992 the regional office received information
from the veteran's spouse indicating that she had self-
employment income of $5,047 in 1989. In March 1993 the
regional office received information from a bank reflecting
wages for the veteran's spouse of $3,100 in 1990; $6,406 in
1991; and $6,787 in 1992.
6. In July 1993 the regional office terminated the veteran's
award of improved disability pension effective in February
1989 due to excess family income consisting of his Social
Security benefits, $510 additional income ($324 from
racetrack winnings and $186 in interest) and $5,047 wages for
his spouse.
7. The veterans award was later resumed effective in January
1996 based on a reopened claim received in December 1995
since he was found entitled to the aid and attendance benefit
and the only income of himself and his wife at that time was
Social Security benefits.
8. The evidence establishes that the net countable income of
the veteran and his spouse was in excess of the maximum
permitted for entitlement to improved disability pension from
1989 to 1993.
CONCLUSION OF LAW
The veteran's award of improved disability pension was
properly terminated effective in February 1989 due to excess
family income. 38 U.S.C.A. §§ 5103, 5107, 5121 (West 1991);
38 C.F.R. §§ 3.23, 3.271, 3.272 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that it has found the veteran's claim to be
"well grounded" within the meaning of 38 U.S.C.A. § 5107(a);
effective on and after September 1, 1989. That is, the Board
finds that he has presented a claim which is plausible. The
Board is also satisfied that all relevant facts regarding the
claim have been properly developed.
I. Background
The record discloses that the veteran had been in receipt of
improved disability pension benefits for several years. His
wife had been included as a dependent on his award. His
awards had been based on his reports that the only family
income consisted of his Social Security benefits.
The record indicates that in December 1991 the regional
office received information indicating that the veteran had
had additional income in 1989 and his spouse had had income
of $5,047 during that year.
The record further reflects that in March 1992 the regional
office received information indicating that the veteran had
received $324 from racetrack winnings in 1989 and $186 from a
bank.
In November 1992 the regional office received information
from the veteran's spouse indicating that she had had self-
employment income of $5,047. In March 1993 the regional
office received information from a bank reflecting wages for
the veteran's spouse of $3,100 in 1990; $6,406 in 1991; and
$6,787 in 1992.
In July 1993 the regional office terminated the veteran's
award of improved disability pension effective in February
1989 due to excess family income consisting of the veteran's
Social Security benefits, additional income of $510 for the
veteran ($324 from racetrack winnings and $186 in interest)
and $5,047 wages for his spouse.
The record further reflects that in January 1996 the
veteran's award of improved disability pension was resumed
based on a claim received in December 1995. He had been
found entitled to the aid and attendance benefit and the only
family income at that time consisted of Social Security
benefits for himself and his wife.
II. Analysis
The maximum annual rate of improved disability pension for a
veteran with a dependent spouse was $8,466 effective in
December 1988; $8,864 effective in December 1989, $9,343
effective in December 1990; $9,689 effective in December
1991; and $9,980 effective in December 1992.
38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b).
The maximum rate of improved disability pension is reduced by
the amount of the countable annual income of the veteran.
38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b).
The term "veteran's annual income" includes the veteran's
annual income and the annual income of the veteran's
dependent spouse. 38 U.S.C.A. § 1521; 38 C.F.R.
§ 3.23(d)(4).
The term "dependent" means a veteran's spouse or child. A
veteran's spouse who resides apart from the veteran and is
estranged from the veteran may not be considered the
veteran's dependent unless his spouse receives reasonable
support contributions from the veteran. 38 U.S.C.A. § 1521;
38 C.F.R. § 3.23(d)(1).
In determining income for purposes of entitlement to pension
under the improved pension program, payments of any kind or
from any source will be counted as income during the 12-month
annualization period in which received unless specifically
excluded. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271.
There will be excluded from a veteran's annual income amounts
equal to amounts paid by the veteran for unreimbursed medical
expenses to the extent that such amounts exceed 5 percent of
the maximum annual rate of pension payable to the veteran
(including increased pension for family members but excluding
increased pension due to aid and attendance).
38 U.S.C.A. § 1503; 38 C.F.R. § 3.272.
In this case, as indicated previously, the veteran had been
in receipt of improved disability pension benefits for
several years based on his reports that the only family
income consisted of his Social Security benefits. His wife
had been included as a dependent on his award. However, from
late 1991 until early 1993, the regional office received
information that the veteran had received $324 from racetrack
winnings and $186 from a bank in 1989 and that his spouse had
had self-employment income of $5,047 during that year. His
spouse also had wages of some $3,100 in 1990; $6,400 in 1991;
and $6,700 in 1992. In July 1993 the regional office
terminated the veteran's award of improved disability pension
effective in February 1989 due to excess family income
consisting of the Social Security benefits of the veteran and
additional income of $510 for the veteran ($324 from
racetrack winnings and $186 in interest) and $5,047 income
for his spouse.
The veteran has maintained that his award of improved
disability pension should not have been terminated, in part,
because he did not receive some of the income attributed to
him, especially the sum of $1,806 additional income initially
attributed to him in 1989. However, neither the veteran nor
his spouse have contested the amounts of Social Security
benefits received by the veteran and the wages received by
his spouse during the period in question. In this regard,
the veteran's annual Social Security benefits were calculated
by the regional office as $7,102 effective in early 1989;
$7,438 effective in early 1990; $7,179 effective in late
1990; and $8,121 effective in late 1991. His spouse
indicated on a financial status report dated in October 1993
that she was still employed and earning $507 per month.
Thus, it is apparent that the Social Security benefits of the
veteran and wages of his spouse alone were in excess of the
maximum permitted for entitlement to improved disability
pension during the period from 1989 to 1993 even with the
reduction of the applicable portion of the unreimbursed
medical expenses of $1,122 reported for the annualized period
beginning in April 1990; $1,299 for the annualized period
beginning in April 1991; and $812 for the annualized period
beginning in April 1992. Accordingly, it follows that the
veteran's award of improved disability pension was properly
terminated effective in February 1989 due to excess family
income. 38 U.S.C.A. §§ 5103, 5121; 38 C.F.R. §§ 3.23, 3.271,
3.272.
The evidence also indicates that the veteran and his wife
were separated from March 1988 to September 1992. However,
she has indicated that he paid her the sum of $35 per week
during that period of time. Thus, since she was receiving
reasonable support contributions from the veteran, she is
considered his dependent during that period of time and her
income was properly included as countable income for that
period of time. 38 U.S.C.A. § 1521; 38 C.F.R.
§ 3.23(d)(1)(4).
The Board has carefully reviewed the entire record in this
case; however, the Board does not find the evidence to be so
evenly balanced that there is doubt as to any material issue.
38 U.S.C.A. § 5107.
ORDER
The veteran's award of improved disability pension was
properly terminated effective February 1, 1989, due to excess
family income. The appeal is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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